Three federal agencies work together to throttle tens of thousands of new housing units every year: The United States Army Corps of Engineers (“USACOE”), the Environmental Protection Agency (“EPA”) and the United States Fish & Wildlife Service (“USFWS”). These three vast bureaucracies administer a pair of fifty-year-old statutes—the Clean Water Act (“CWA”) and the Endangered Species Act (“ESA”)—in perverse ways that neither protect the “navigable waters” of the country nor the species and subspecies listed as “endangered” or “threatened” by the USFWS.
When these three agencies and two statutes combine, the result is a giant-sized tangled tumbleweed of rules, regulations and permit requirements. The result of that enormous ball of red tape is a vast housing shortage and enormous obstacles to the extraction of energy from the ground and the construction of “small, modular nuclear reactors” (SMRs) that should power this country for the next couple of centuries and perhaps beyond.
TRUMP CAN UNLEASH A HOUSING BOOM BY ENDING THE ‘ENDANGERED SPECIES’ SCAM
It is certainly possible for the new Trump teams at the Departments or Defense and Interior and the Environmental Protection Agency to issue clear and precise directives for a regulatory package necessary to cut the five-decade-developing Gordian knot that these agencies and laws have wrought, and to do so on January 22, 2025. But it would still take a minimum of a month to draft and two months to publish a proposed rule and another three months to collect comments and finish a rule-making—and then the litigation from opponents of progress for people would start. The new leadership should begin that process of ordering up a “national Section 10(a) permit” for the taking all listed species after payment of significant fee, combined with a national Section 404 permit whenever such species are on or near “jurisdictional waters” of the country along with a mandate that EPA will not elevate any Section 10(a)/404 permit issued pursuant to the bureaucracy-killing new rule. Congress could and should move faster.
The budget-reconciliation process of early 2025 provides a vehicle for the Congress to decree that the ESA and CWA are amended to provide that, notwithstanding any previous rule, regulation or court decision, the USACOE, EPA and USFWS shall issue within 60 days a national Section 10(a)/404 permit which shall be available to any private landowner for the “taking of an endangered species or its critical habitat” upon payment of a fee of $10,000 per acre of occupied habitat impacted or a fee of $1,000 per acre of unoccupied but designated “critical habitat” necessary to the proposed development. Because such a national “bureaucratic breakout” provision in the budget will result in massive inflows of funds—earmarked for habitat acquisition at the direction of the Secretary of the Interior—a trailer bill authorizing the “takings” of the species or subspecies and the impacts to “waters of the United States” will fit within the reconciliation process. That same trailer statute can remove the applicability of the “citizen standing” provisions of the ESA and CWA as well as those in the National Environmental Policy Act (“NEPA”) while eviscerating the EPA’s “elevation” authority over permits which seems always to be deployed by that agency to make seemingly endless bureaucratic processing into actual “to infinity and beyond” paper chases.
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If you have read this far, you have waded though five paragraphs of as-close-to-laymen’s‑language-as-possible translation of “bureaucratese.” The handful of lawyers who represent landowners in these matters—I’m retired but the ranks of the truly competent species/wetlands permitting lawyers are very few—are nodding. It would take a day or two to draft the liberating language for the budget-reconciliation process. And the productivity payoff would be immense. And almost immediate.
Laymen should be asking “But what about the poor endangered species?” and “Who will keep the water clean?” Legitimate questions those, and their answers are simple: The vast majority of the “endangered or threatened species” so designated by the USFWS actually are not “endangered or threatened,” and the ACOE regulates dry beds of streams that trickle every few years despite having been directed repeatedly the United States Supreme Court not to do so. The new statute would simply return federal bureaucrats to their positions in 1970 before the first haphazard statutes were drafted while empowering the collection of the fees necessary to actually buy and preserve land necessary for the genuinely endangered species to thrive.
There are efficient ways to protect genuinely endangered species and to protect actual rivers and wetlands actually physically adjacent to those rivers. But the CWA and ESA don’t do those things as presently interpreted and administered. They instead function as full employment acts for bureaucrats, biologists, consultants and lawyers.
In an age where AI could quickly produce not just a map of land that needs to be acquired to provide the most biological diversity for the buck, the existing absurd and Jerry-built maze of federal permits needs a “repeal and replace” moment. It should be this February and March.
Both paths—the regulatory and the statutory—should be pursued, but the key truth is that there is no reason that the dysfunctional laws Congress passed 50-plus years ago cannot be repealed or amended by this new Congress. If we want young folks to be able to buy starter homes and renters not to be captive of the apartment shortage that plagues so many zip codes, we have to build, build, build housing units at the same time that we embrace “drill baby drill.” Both can be done with extraordinary benefit to the environment but at great cost to sinecures created by the administrative state.
The enormous power needs of the new technologies can also be met, and quickly, but only if the Congress clears a path for SMRs out of the forest of absurd rules and regulations built up over a half-century of abdication of property rights and economic growth to nameless, faceless petty tyrants of obscure agencies. The vast majority of Americans want a housing and energy boom, not full employment for feds.
Hugh Hewitt is host of “The Hugh Hewitt Show,” heard weekday mornings 6am to 9am ET on the Salem Radio Network, and simulcast on Salem News Channel. Hugh wakes up America on over 400 affiliates nationwide, and on all the streaming platforms where SNC can be seen. He is a frequent guest on the Fox News Channel’s news roundtable hosted by Bret Baier weekdays at 6pm ET. A son of Ohio and a graduate of Harvard College and the University of Michigan Law School, Hewitt has been a Professor of Law at Chapman University’s Fowler School of Law since 1996 where he teaches Constitutional Law. Hewitt launched his eponymous radio show from Los Angeles in 1990. Hewitt has frequently appeared on every major national news television network, hosted television shows for PBS and MSNBC, written for every major American paper, has authored a dozen books and moderated a score of Republican candidate debates, most recently the November 2023 Republican presidential debate in Miami and four Republican presidential debates in the 2015–16 cycle. Hewitt focuses his radio show and his column on the Constitution, national security, American politics and the Cleveland Browns and Guardians. Hewitt has interviewed tens of thousands of guests from Democrats Hillary Clinton and John Kerry to Republican Presidents George W. Bush and Donald Trump over his 40 years in broadcast, and this column previews the lead story that will drive his radio/ TV show today.